Prof. Kaveny says judges need empathy

Published: June 16, 2009

Notre Dame Professor of Law Cathleen Kaveny, a columnist for “Commonweal” magazine, wrote that “empathy” is a necessary quality for judges to possess. Her comments come in the midst of a debate about whether empathy is a help or hindrance to the pursuit of justice, which began after President Obama’s declaration that he wanted to appoint a Supreme Court Justice with “empathy” in addition to intellect and an adherence to the rule of law.

Kaveny points to an argument by prominent jurist and Catholic moralist John Noonan, who recently spoke at the University of Notre Dame’s Commencement ceremony. “Noonan argues that at the heart of the legal system are two equally essential components: rules and persons. We all know the importance of rules-they are impersonal, they are impartial, they are framed with a concern for the larger good of the whole community,” writes Kaveny. “Neglecting the claims made by rules produces judicial ‘monsters’ who strangle justice with bribery, arbitrariness, or bias. As Noonan notes, the Book of Deuteronomy describes God as a judge who ‘regardeth not persons nor taketh rewards.’ A good judge must have due regard for the rules.

“But rules are not enough,” continues Kaveny. She refers to Noonan’s words to illustrate that point: “There is no reason to suppose that justice is the only virtue required of a lawyer, legislator, or judge. If [judges] are not to cease to be human, they must cultivate the other virtues of humanity,” writes Noonan. Kaveny adds that, “A judge can hide behind rules to escape responsibility for the harm he or she is causing to other human beings.”